Chad Griffin, left, and Jim Obergefell In Dallas just days after the U.S. Supreme Court brought marriage equality to Texas.
(David Taffet/Dallas Voice)

Although same-sex marriage is established law, opponents continue to try to make it as unequal as possible through a barrage of lawsuits

DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com

Most people thought marriage equality was a settled issue when the U.S. Supreme Court issued its Obergefell ruling in June 2015, legalizing same-sex marriage throughout the U.S.

Most people were wrong.

In the nearly three years since that historic ruling, opponents of same-sex marriage have filed a barrage of lawsuits around the country aimed at making same-sex marriage as unequal as possible. And in some cases, the courts have agreed with them.

While a couple may marry anywhere in the country, they can get fired from their jobs for being LGBT the next day in places around that country that don’t offer municipal or statewide protections from employment discrimination. Texas is among the states that have no protections.

Offering nondiscrimination protections and employment benefits to same-sex couples has been a contentious issue in Texas, especially in Houston.

In 2013, Mayor Annise Parker extended benefits to city employees who were married to same-sex partners. Marriage equality hadn’t been recognized in Texas yet, but was offered in some surrounding states.

So opponents of equality filed a lawsuit, Pidgeon v. Parker, to stop the city from offering married same-sex couples equal benefits. Then, on June 30, 2017, two years after the Obergefell ruling, the Texas Supreme Court ruled married same-sex couples don’t necessarily have a right to the same marriage benefits as opposite-sex couples.

Four days earlier, the U.S. Supreme Court ruled in a case out of Arkansas regarding who can be listed as a parent on a birth certificate. “The Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples,” the SCOTUS majority wrote in its opinion.

And yet, despite the Obergefell ruling that said marriage for same-sex couples includes all the “rights, benefits, and responsibilities” of opposite-sex marriage, the Texas Supreme Court questioned whether that case required anything more than issuing a marriage license. The case — since renamed Pidgeon v. Turner after the new mayor, Sylvester Turner, who has vowed to continue fighting for equality — affects Houston city employees only.

In December, the U.S. Supreme Court let the Texas Supreme Court ruling stand by rejecting an appeal without comment. On April 10, the city of Houston was ordered by a district judge to pay attorneys fees for the plaintiffs. Turner said the city would continue to defend the rights of city employees to have equal access to benefits and would appeal again.

One reason the Supreme Court may have rejected hearing Pidgeon in December is that another case already on the docket this session may cover the issue. Best known as the Masterpiece Cake case, this lawsuit deals with whether a business open to the public can discriminate against someone based on religious beliefs.

The court’s decision could be released any day, but in keeping with tradition, if the ruling is written by Justice Anthony Kennedy, it will be issued on June 26, just as his four previous LGBT equality decisions were.

The case deals with a bakery that refused to bake a wedding cake for a same-sex couple. The bakery owners argue that they would be complicit in the wedding, which goes against their religious beliefs, if they baked the cake. The couple asking for the cake argue that a business open to the public can’t pick and choose its customers or refuse service to some.

While Masterpiece Cake seems like a silly case on the surface, it could have far-reaching implications. For example, a doctor could decide not to treat a patient because because the patient is transgender and her gender identity goes against the doctor’s religious beliefs.

If the Masterpiece Cake decision is a broad ruling, the court could rule that not only can a business not discriminate against customers, but an employer may not discriminate against employees and those employees are entitled to equal benefits.

To cover benefits, the court may quote from its own Obergefell decision to send a message to lower courts on how to rule in other marriage cases.

Benefits are mentioned a number of times throughout the decision, but the right to more than just a license issued by the court is specified several times.

“…just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union,” Kennedy wrote on page 21 of the Obergefell ruling.

The claim by right-wing antagonists that marriage equality would lead to people marrying inanimate objects came to a head in a Dallas courtroom in March. Plaintiffs in that case included someone who claimed to be an ex-gay and another claiming to be a former transgender person that wanted to enter a polygamous marriage, and someone else who wanted to marry his computer.

U.S. District Judge Sam A. Lindsay threw out the case because the plaintiffs had filed multiple suits and refused to follow the rules of the court.

He didn’t rule on the merits of the case.

Lambda Legal has filed a case against the U.S. Department of Health and Human Services and the U.S. Conference of Catholic Bishops on behalf of a couple who weren’t allowed to apply to serve as foster parents for refugee children by an organization affiliated with the Catholic bishops because, they were told, they did not “mirror the Holy Family.”

And Freeman v. Turner sues Houston on behalf of three couples whose spouses stand to lose their benefits as a result of Pidgeon.

If a so-called religious freedom bill returns in the next legislature and passes, expect to see a number of new lawsuits cropping up around Texas to protect people from the life-threatening impact of this law that would give doctors, paramedics, firefighters, pharmacists and others the right to refuse service based on religious beliefs.